Tikomailepanoni (Migration) - [2025] ARTA 152

Tikomailepanoni (Migration) [2025] ARTA 152 (31 January 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Mr Eroni Buruso Tikomailepanoni
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2442693
Tribunal:General Member A McMurran
Place:Sydney
Date:31 January 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.
Statement made on 31 January 2025 at 3:04pm
CATCHWORDS

MIGRATION – cancellation – Temporary Work (International Relations) (Class GD) visa – Subclass 403 (Temporary Work (International Relations)) – PALM scheme – genuine intention to carry out work for which visa was granted – stood down by employer after medical issue and required to provide medical clearance certificate – no medical test results provided and unable to obtain certificate – relocated and resigned – no further contact from employer or workplace – new employment and possibility of sponsorship – discretion to cancel visa – intention to add to savings then depart – dependent mother – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(ia), (1A)
Statement of reasons

APPLICATION FOR REVIEW

This is an application lodged 8 November 2024 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant no longer had a genuine intention to stay temporarily in Australia to carry out the work in relation to which his visa was granted.
The delegate considered discretionary factors according to Policy, and while acknowledging the applicant’s responses, determined that the preferable outcome was to cancel the visa given the applicant’s employment termination from the designated employer, and the largely unexplained related circumstances.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant, Mr Eroni Buruso Tikomailepanoni, a citizen of Fiji, appeared before the Tribunal on Friday, 10 January 2025 to give evidence and present arguments. The applicant was unrepresented in relation to the review. An interpreter in the Fijian language was present to interpret English into the Fijian language. The Tribunal did not detect any issue with interpretation and none were raised
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
The applicant is a 35-year-old Fijian national who arrived in Australia on 15 February 2022. He is single and has no dependents and no family in Australia. In Fiji, he lives with and supports his widowed mother.
He was granted a Subclass 403 (Temporary Work (International Relations)) visa on 9 February 2022. The visa is granted pursuant to the Pacific Australia Labour Mobility stream (PALM). The applicant’s visa is due to expire on 15 February 2025.
From February 2022, the applicant was working in an abattoir at Wagga Wagga operated by Teys Australia Pty Ltd (“Teys”) for an approved sponsor, Regional Workforce Management Pty Ltd (“RWM / the recruiter/sponsor”). The applicant was recruited in Fiji by RWM as his employer, responsible for his wages and visa supervision as the sponsor, and whose business is described as ‘meat processors’. RWM recruit Fijian meat workers for the abattoir workforce in Australia.[1]
[1] See >
The applicant had been employed in Fiji in a fish food processing factory for 6 years, prior to applying for a Subclass 403 visa under the PALM Stream. After being interviewed by the recruiter and selected in Fiji as suitable for the stream, and following a short period of orientation, the applicant arrived in Australia on 15 February 2022.
On his arrival, the applicant was sent to the Teys abattoir where his role on the processing floor was to hoist and hang carcasses. He was the only person engaged in that role. The applicant remained in that role until July 2023 (“the employment”).
From February 2022, the applicant shared rental accommodation in the town with other meat processing workers from the abattoir. In or about 6 June 2023, after a short period (2 days) when he stayed at home because he was unwell with chest pain, the applicant was stood down from the employment.
A representative from RWM told him he could not return to work at the abattoir without a medical clearance certificate. He was not being paid while off sick, and could not pay his rent. The applicant was referred to the local hospital.
On 16 June 2023 The applicant relocated to Wollongong in NSW where he remained with a local Pastor whom he had befriended. He resigned the employment with RWM on 4 July 2023. In Wollongong, the applicant found other work at a local motel, The Solomon Inn, doing housekeeping and maintenance duties. He has remained in that position for more than 12 months while awaiting this review. His new employer proposes to sponsor him, subject to the outcome of the cancellation decision.
The applicant received a Notice of Intention to Consider Cancellation (“NOICC”) from the Department dated 9 September 2024. The notice informed the applicant that as he had “disengaged from the PALM scheme”, his visa was liable to be cancelled under the Migration Regulations (“the Regulations”)[2].
[2] Reg 2.43(1A)(a)
The applicant emailed the Department in response on 9 September 2024. He asked for help “in keeping my visa”. He sent a further response by email on 13 September 2024 explaining he had found other work and providing details. He did not respond directly to the claims in the NOICC.
On 17 October 2024, Department information records the applicant “absconded” effective 13 June 2023 from his employer, RWM, and on 18 October 2024, the Department emailed the applicant its decision record whether to cancel his visa under s116 of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

Legislative provisions in the Act and Regulations

Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.
Relevantly, to this case, these include the grounds set out in s 116(1)(g) of the Act. The sub-section relevantly provides that:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
(g) a prescribed ground for cancelling a visa applies to the holder.
Subsections (2) and (3) of s116 set out respectively that where there exist prescribed circumstances, the visa must either not be cancelled (2), or where it must be cancelled (3), depending upon relevant prescribed circumstances.
Regulation 2.43 of the Migration Regulations 1994 (“ the Regulations”) sets out prescribed circumstances for s 116(1)(g).
Subparagraph (1)(ia) of r 2.43 refers to the holder of a Subclass 403 (Temporary Work (International Relations)) visa, such as was held by the applicant visa holder in this case.
Reg 2.43 relevantly states:
2.43(1)  For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following: …
(1A)  For paragraph (1)(ia), the grounds are that, despite the grant of the visa, the    Minister is satisfied that the visa holder did not have at the time of grant of the visa,      or has ceased to have, a genuine intention to stay temporarily in Australia to carry         out the work or activity in relation to which:
(a)  the visa holder's visa was granted;
The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC). The circumstances described in ss116(1AA), (1AB) or (1AC) are not applicable in this case.
In the present case s 116(1)(g) applies and the Tribunal must determine whether a prescribed ground described in r 2.43(1A) exists[3], and if so, whether the visa should be cancelled.
What is being considered
[3] the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:
The Tribunal has available for this review extracts from the Department and Tribunal files, the applicant’s submissions and written documentation, Policy considerations, the oral evidence from the hearing, the Act and Regulations and relevant court authorities.
The review is a two-step process. Firstly, the Tribunal must consider whether the ground for cancellation exists.
This means the Tribunal must find that despite the grant of the visa, the Tribunal as decision-maker is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which the visa was granted. The ‘work’ or ‘activity’ in this instance was for the applicant to be engaged as a meat process worker.
In this matter, subparagraph 2.43(1A) applies, where the Tribunal must consider on the available information whether the applicant has ceased to hold a ‘genuine intention’ to stay in Australia to carry out the work or activity under the grant of the Subclass 403 visa, and for which the visa was granted.
Secondly, if the ground is made out, the Tribunal must then consider whether the visa should be cancelled. There are no ‘prescribed circumstances’, as such, for consideration in order to determine whether the visa should be cancelled. In the interests of fairness and consistency, Department Policy has made recommended considerations as to how the discretion should be exercised, and has proposed matters for guidance. The Tribunal has had regard to those matters below.
When considering the exercise of discretion, the Tribunal may also have regard to any ‘other relevant matter’ raised with the available information, whether contained in the applicant’s submissions, or included in Policy, or not.
The important step is to weigh all submissions and considerations appropriately, and to conclude in accordance with what the decision-maker then decides is the preferable outcome.

Does the ground for cancellation exist?

s 116(1)(g) - prescribed ground

As noted above, the statutory scheme provides that a visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant.
The Tribunal has had regard to the circumstances outlined in the delegate’s decision as to why the visa was cancelled. The decision notes that the applicant was recruited to work with RWM as an approved sponsor for the PALM stream workforce.
RWM’s business is described as “meat processors”[4] and it was responsible for locating and recruiting the applicant for its workforce requirements and placing him in Australia. RWM also supervised him with an appointed employee supervisor, while the applicant was working at the abattoir for Teys.
[4] >
There was no evidence before the Tribunal that at the outset, when he was first engaged by the recruiter for the role for which the visa was granted under the PALM stream, that the applicant did not have a genuine intention to stay temporarily in Australia to carry out the work or activity as a meat worker and for which the visa was granted.
The applicant started the role as placed by RWM in February 2022 where he remained until June 2023.
The Tribunal finds therefore that when he was granted the visa, the applicant had a genuine intention to stay temporarily in Australia to carry out the work or activity for which the visa was granted.
Did the applicant cease to have a genuine intention to remain temporarily in Australia to carry out the work for which the visa was granted?
At the hearing, the applicant conceded that when he left the employment at the abattoir in June 2023, and then resigned on 4 July 2023, he did not intend to resume the employment. He had resigned, and the reasons for his departure, and the circumstances of his termination were discussed with him by the Tribunal as summarised below.
Ground established
The Tribunal finds on the available information that the applicant was granted a Subclass 403 visa by the Department in order to work as directed by RWM at an abattoir at Wagga for the abattoir owner, Teys.
The applicant resigned from that employment on 4 July 2023 before the expiry of his visa (due in February 2025), and without approvals either from the Department or from RWM. The applicant has said he does not intend to resume the employment.
The Tribunal concludes therefore that the applicant has ceased to have a genuine intention to carry out the work for which the Subclass 403 visa was granted.
As at the time of cessation of the applicant’s employment, the Tribunal finds that the ground for cancellation arose under s 116(1)(g) of the Act, and the ground for cancellation exists.
As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Applicant’s evidence at hearing
The Tribunal explained to the applicant that as the ground for cancellation exists, all relevant matters he wanted to raise concerning whether the visa should be cancelled were up for submission.
The applicant’s responses to questions are summarised below. The Tribunal does not have the benefit of a transcript and where noted in italics, the Tribunal has referred to the applicant’s direct responses.
The applicant explained his personal background and family circumstances. He told the Tribunal he wished to deal with the matter himself and without a representative. He did not seek an adjournment and was ready to proceed to discuss the facts concerning his visa. At the time of the hearing, the applicant had received no advice as to the consequences of termination of the employment and of the subsequent visa cancellation, or workplace advice such as may be provided by Legal Aid or Fair Work Australia.
He told the Tribunal he does not want the visa to be cancelled as he does not wish to return immediately to Fiji. He said he was always intending to return, but hopes to stay in Australia longer, to add to his savings for when he returns. He said he hopes to be able to have sufficient funds to build accommodation for himself and his mother.
The applicant explained that he lives with his mother in Fiji, his father having passed away 2 months after he arrived in Australia. He is an only child. He said his mother is entirely dependent upon him. He said he had supported them both from his earnings when at the fish factory in Fiji. This was his first trip to Australia and he has never been to any other countries. He said he was told about the Subclass 403 visa from colleagues in the factory who were applying for the visa themselves.
He said the visa was granted very quickly, within a week, and then he had to attend an orientation with others before he left. He said the orientation was conducted by the Fijian Department of Employment. He said he was told he would work for one employer, RWM. The workplace was named as Teys Australia at Wagga Wagga in New South Wales. He said he was told he would be working for a meat processing company in their abattoir.
He was asked to describe the job. He said he would physically hang the meat carcasses on the processing floor. He said he was the only person doing that job. He thought it was quite a large company and there were other Fijian people with him at the abattoir, about 35 he thought. He said some others who were at the briefing in Fiji went to different parts of Australia. He said that RWM “were responsible to pay us”. He said he was interviewed by someone from RWM before the visa was granted.
He said on arrival in Australia, he went straight to Wagga Wagga. He and his colleagues had to find their own accommodation. He said he rented a property in a 4 bedroom house with 9 others who were working at the abattoir. He said they stayed there for a short while, some colleagues sleeping on the floor. He did not like that environment and went looking for another house to rent for himself and 2 others. He said when they found a property to rent, he was one of the tenants on the lease. He said this was the property he was living in until he left Wagga Wagga. He said his 2 colleagues as far as he is aware are still living at that property.
He was asked why he left the employment. He said on or about 6 June 2023 he had developed a pain in his chest and was unable to go to work. He stayed at home. He said someone from work then came to their property because he had been absent for 2 days. He said he was told to return to work.
When he returned, he was asked to provide a medical certificate. To obtain a certificate, he was told to go to the local hospital for treatment and a medical examination.
He said he went to the hospital, and then “I called the sick line at work” to tell them he had done as asked. He said someone from his employer told him he had to return to work, so he did, but this time he took a medical certificate he had obtained from the hospital. He said when he gave them the medical certificate, they told him to go back to the hospital and “get a medical clearance report” to show that he was fit to return.
On 14 June 2023, he said the doctor at the hospital gave him a pathology referral which he undertook. The ‘medical certificate’ to which the applicant had referred and copied for the Tribunal, required him to take a “routine blood test and ECG”. He said however that when he went for the ECG, he was told the machine was “not working” and he would “have to wait”. He provided a blood test sample.
He said about this time, someone from Raine and Horne, the agent managing the lease, had come to their house to tell them the lease was expiring. He said they had been living there for around 12 months. He said he became concerned because he had not been paid since he was off work from 6 June 2023, and could not meet his share of the rent. He said he could not commit to signing a lease renewal while he was off work.
He was asked for more details about why he did not return to work. He said someone from RWM whom he named, a Fijian woman, had come to their home and told him that he could not resume his job unless he had “a clear certificate to work”.

He said she had told him to “go and see the company nurse” and it was the nurse who had told him to “you must go and get a clear health certificate because of your complaint about chest pain”.

He said the doctor at the hospital gave him the referrals for pathology and the ECG on 14 June 2023. He said he has never received the results of his blood test from the hospital, and they did not contact him about returning for the ECG. He said he did not know what to do because he had been told not to return to work without a medical clearance certificate and the hospital had not given him a clear certificate to enable him to return.
He said he was looking for help and made contact with a Pastor who sometimes came to Wagga Wagga to help the workers and to provide religious support and whom he had befriended. He said the Pastor had conducted services for the Fijian workers in Wagga. When he spoke with the Pastor and told him of his circumstances, the Pastor suggested he might want to leave if he could not pay his rent share, and that the Pastor said he could assist him with accommodation.
The Pastor lived in Wollongong, and offered to provide him some temporary accommodation, as the applicant could no longer afford to pay his rent and could not sign a lease renewal. He said at the time, he was not being paid by RWM while he was absent from work trying to get a medical clearance certificate as had been requested.
The applicant said he moved to Wollongong by train on 16 June 2023 to have a place to stay without imposing on his colleagues. He said at all times he was contactable and did not change his personal contact details for mobile and email.
He said when he was in Wollongong, after about two weeks, when he had heard nothing from the hospital about his medical certificate, or from RWM, the Pastor suggested he should resign. He said the Pastor helped him write a resignation letter which he emailed to RWM. The email letter states that the applicant “intend to resign from the company effective today 4^th July, 2023.” The applicant provided a copy of the emailed letter to the Tribunal.
He was asked why he had resigned. He said, “I felt I was unemployed, I was not earning any money, and was not paid if I stayed away. I could not pay the rent and could not renew the lease. I told my friends I could not sign up for my share of the lease because I did not know how long it would be that I was unable to work at the abattoir.”
The applicant was asked if he understood that by resigning, he would be in breach of his visa obligation. He responded that he “did not realise then I would not meet that visa obligation to work for the employer”. He said, “The employer would not let me return to work”.
He was asked if he could not work, why he did not return to Fiji. He responded that he came to Australia “to work, and I needed to work so I could support my mother after my dad passed away. I was determined to help my mother”.
He was asked if he had contacted the Department to inform them of his change of circumstance. He explained he had never had any contact with the Department, as everything was done through RWM. He did not know who to contact and it did not occur to him to do so. He had expected someone to contact him, as he had an active email account and phone number. He said he had expected it would be from RWM to offer him some assistance, but this did not happen.
He said after speaking with the Pastor who was helping him, said he had felt supported as he could no longer live with his colleagues in Wagga Wagga “without paying rent”. He said when he left for Wollongong, at that time, he had been told he could not return to work without medical clearance. He had not heard from the hospital about having an ECG or the result of his blood tests. He did not know when that might happen. He said he still has not heard. The only person he had turned to for assistance at that time was the Pastor from Wollongong.
He was asked about what happened after he resigned. He believed that Teys had accepted his resignation, although he had received no response and RWM had subsequently made a payment to him. Payments were made by RWM into his ANZ Bank account and referred to as “Salary from RWM wages”[5].
[5] ANZ bank record produced
He said he did not hear directly from anyone either from RWM or Teys after he had sent his resignation letter on 4 July 2023. He maintained that so long as he found other work, which was the reason he came to Australia, he would be able to do so and his visa could continue because “I was working”. He maintained he did not appreciate the visa could be cancelled. He said the first he knew of the proposed cancellation was when he was emailed the Notice of Intention to Consider Cancellation from the Department dated 9 September 2024.
It was put to the applicant that he should have explained to RWM or Teys why he had left, as he came to Australia on condition that he work as directed which was to work at the abattoir. He could have sought consent to leave and go somewhere else. He said that when he gave his resignation, he was hoping that RWM would advise him. He said, “they just paid me my entitlements and let me go”.
He said no one told him to report his circumstances to the Department, as RWM knew his circumstance because he had resigned. He said he had not “absconded”, as was reported by the Department. He had left because he had been told not to return to work without a medical clearance, which he had been unable to obtain. He submitted that he had attended the local hospital as required, but had not been contacted since.
He gave no indication as to whether he had attempted to follow up the hospital after he had departed for Wollongong.
The applicant produced for the Tribunal a copy of his bank record showing his wages payment from RWM and a copy of the pathology and ECG request recorded 14 June 2023. He maintained he had not received any communication from the hospital after that date. The hospital record shows it had noted the applicant’s contact number.
The applicant was asked what he had been doing in Wollongong. He said he was introduced to the owner of the motel where he is now working. The owner of that motel has provided a reference and employment certificate for the applicant which was copied to the Tribunal and dated 14 January 2025. It notes that: “We value (the applicant) as part of our team here at the Solomon in and will continue to employ him as long as his allowed to work here. We are also quite willing to sponsor him to be able to continue working in Australia”.
The applicant also provided the Tribunal at the hearing with a copy of a reference from Wollongong Wesley Faith Community stating he is a member of the congregation who participates and cooperates.
The Tribunal has listened to and considered the applicant’s explanations, which is the first time he has responded directly to the matters particularised in the NOICC, giving his side of the story.
The following facts, matters and circumstances arise from the applicant’s oral evidence at the hearing.

Consideration of discretion

Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), as noted, there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.
The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’)[6], which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
[6] Policy PAM 3
Matters considered in the exercise of discretion
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.
The applicant’s Subclass 403 visa granted on 9 February 2022 was to enable the applicant to participate in employment in Australia with RWM. The purpose of the visa was to enable the applicant to remain temporarily in Australia. His role working in an abattoir was part of the Australian government’s approved PALM stream for Pacific workers. This was the role for which he had been recruited by RWM.
As the applicant has left the approved employment, for whatever reason, he is no longer part of the PALM stream recruited for the purpose of the visa. Working in the PALM stream was the purpose for his travel to and stay in Australia.
The applicant has explained the compelling reasons for him wanting to take up the opportunity to work in Australia. It concerns his family circumstances and the need to provide for his widowed mother, and to enable him to return to Fiji and provide her with accommodation. From the applicant’s perspective, so long as he is working in Australia, he is meeting the objective, which is ‘working’, and which compelled him to seek the visa in the first place.
As the applicant no longer meets the purpose of his travel to and stay in Australia in the approved PALM stream employment, and has ceased to have an intention to carry out the work for the sponsor, that consideration carries considerable weight in favour of cancelling the visa.
The Tribunal accepts the applicant’s evidence that he continues to have a compelling need to remain in Australia in order to have sufficient funds to return to Fiji and achieve his objective of providing accommodation for his mother. The applicant has estimated he will require about $17,000 in savings and presently has approximately $6,000 towards that target.
The Tribunal gives a little weight to the applicant’s accepted ‘compelling need’ to remain in Australia.
The extent of compliance with visa conditions
The subclass 403 visa includes condition 8577.
This condition requires that the applicant must continue to be employed by the approved sponsor for the length of time stated in the offer of employment. The visa holder must not:
- work for any other sponsor
- change sponsors, without approval
- work for himself/herself
- do any work that does not fit the purpose of the visa [7].

100.On or about 6 June 2023 he was unable to go to work because of chest pain. This led to a chain of events in a relative short period which caused the applicant to leave his employment and formally resign on 4 July 2023.
101.There is no medical evidence before the Tribunal about the applicant’s condition, other than the hospital referral for a routine ECG and blood test. The applicant submitted for these tests as required which were not completed and in respect of which there has been no communication produced from the hospital (or by him) since 14 June 2023.
102.It is further accepted on the facts that his sponsor would not permit the applicant to return to work, until as the nurse from Teys had explained, he obtained a medical clearance certificate from the local hospital where he had gone for treatment.
103.The applicant was concerned because he had not obtained a clearance certificate as required. His income payments had at least temporarily ceased. He was unable to determine when he would be able to resume employment. This had a cascading effect for him in the sense that he was unable to assure his housemates he could pay rent or sign a further lease renewal, or when his wages might resume. In a practical sense, all these matters were beyond his control.
104.What is surprising is that there is no evidence that RWM or anyone on the part of the employment contract took steps to assist the applicant either with obtaining the required medical certificate and assistance, or informing him what he should do to ensure he did not prejudice his status under the visa, or what his work rights may be in terms of sick leave.
105.The lack of follow-up and response by the sponsor interacting with the applicant in such a way as to provide reasonable assistance and advice, or referral for such purpose, is not explained. Such actions, as for example, consulting with the applicant personally to counsel him about his situation and/or referring him for independent advice were not taken.
106.The applicant did not seek or obtain any advice about his workplace and employment rights and unsurprisingly, felt confused and uncertain as to what he should do. He did what he was asked to do at the time both by the RWM employee and by the nurse at the abattoir. That was the extent of any employer response to his situation. The applicant for his part did what was asked of him.
107.The Tribunal accepts that the applicant was pressured because of his financial situation to find alternative accommodation. He was aware when contacting the Pastor in Wollongong for advice that it was an option for him to travel there where he would be safe for the time being and accommodated. He explained that he subsequently found alternative work. He explained that he had never received the results of his medical tests or had an ECG. He did not explain whether he had sought medical assistance when he got to Wollongong. But he did find alternative work which he found less stressful and in a “less bullying” environment.
108.Although he referred to some “bullying” when working at the abattoir, this was not his claimed reason for leaving and was not the subject of any formal complaint to the sponsor on his part.
109.But for the initial medical issue, which has not been diagnosed and in respect of which no medical evidence has been provided, the applicant said he would still have remained working at the abattoir. He did not understand his rights, whether he would be able to resume that employment at the time, or when, or what he should do to meet the requirement to provide the necessary medical clearance certificate. No ‘clearance certificate’ was available. He was told not to return to work unless he was able to provide it.
110.It seems to this Tribunal that these initiating events were beyond the control of the applicant. It was not unreasonable for him to seek medical treatment in the first place. His responses to the circumstances in which he found himself were ill-advised, and not made with any understanding of the consequences and the effect on his visa and reason for remaining in Australia. He received little or no support from the sponsor who simply assumed he had ‘absconded’. No one had asked him if he intended to return to the employment, which he maintains he would have done, even though he did not like the job.
111.The Tribunal is satisfied that the significant events giving rise to his departure from the abattoir were beyond his control. The evidence reveals he was transparent at all times. He did not “abscond” in the sense he deliberately set out to leave the employment. He did what he was asked and thought was appropriate to seek medical assistance. He states that even when he first left for Wollongong, he believed he might return if he were asked to do so. It was not until 4 July 2023 when he had heard nothing further since 14 June 2023 that on advice from his Pastor friend, he decided to resign.
112.The Tribunal is mindful that the applicant is not a person familiar with Australian requirements or law, and it was the first time he had been in a foreign country. Obtaining medical assistance in a foreign place can be a challenging experience. He required help at the time which was not forthcoming and was basically left to fend for himself. It is understandable that he did not know where to turn, so sought assistance from someone who offered friendship and support in the form of the visiting Pastor.
113.The Tribunal notes that on 1 July 2024 the Government introduced amendments to the Regulations. Regulation 2.43B introduced circumstances in which the Minister is not to cancel certain temporary visas for breach of a restricted work condition. The regulation is to apply in circumstances where the Minister is satisfied that the visa holder has not complied with the restricted work condition.[8]
[8] Reg 2.43B(1)(c)
114.The regulation requires for the purposes of subsection 116(2) of the Act, which prescribes when the Minister is not to cancel a visa under subsection 116(1) of the Act, that a certificate be issued by a certifying entity, being a government entity (e.g. Fair Work Australia). The certification must relate to the visa holder in respect of a “workplace exploitation matter” setting out those matters agreed by Immigration and the government entity. The certificate is to refer to circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the certificate relates.
115.This is not a case involving the issue of a certificate which would invoke the circumstances considered by the regulation. The applicant in this case lost his employment due to a medical issue, and where the applicant was left largely to his own devices. For a non-citizen it was a challenging experience and in respect of which the applicant failed. He has not pursued any available workplace advice concerning any unresolved rights he may have, and none is before the Tribunal.
116.Without any such evidence as might be provided by an appropriate certificate contemplated by the regulation, the Minister is not in this case able to consider circumstances not to cancel the visa for breach of a work condition.
117.It should be said however, that the Tribunal accepts the applicant’s evidence and submissions and that his workplace rights endure.[9]
[9] F2024L00838_Strengthening-Reporting-Protections.pdf
118.The Tribunal has considered the available information on the circumstances in which the ground for the visa cancellation arose. The Tribunal considers those circumstances favour the applicant for not cancelling the visa. The Tribunal gives those circumstances considerable weight.
The past and present behaviour of the visa holder towards the Department.

119.There is no evidence before the Tribunal that the applicant has not co-operated with the Department. He responded to the NOICC, provided a candid response, and has at all times remained transparent as to his reasons for leaving the designated employment.
120.The Tribunal gives some weight to this consideration in not cancelling the visa.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
121.There is no information before the Tribunal that any person Australia would or may have a visa consequentially cancelled under section 140.
122.The Tribunal gives no weight to this consideration not to cancel the visa.
123.Whether there are mandatory legal consequences to cancellation
124.Cancellation may result in the applicant facing a bar for a period from any further visa applications for Australia.
125.The applicant will be unable to remain onshore and would face detention and deportation were he to fail to depart voluntarily for Fiji. The applicant may be able to avail himself of Ministerial intervention given the circumstances and available information for this review, but would need to seek advice in that regard.
126.No such request has been made to the Tribunal to refer the matter to the Minister for such consideration.
127.There are no apparent non-refoulement obligations arising from the applicant’s given circumstances affecting Australia and which might otherwise prevent the applicant’s removal to his country of origin.
128.The Tribunal gives a little weight to this consideration against cancelling the visa.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
129.There is no information before the Tribunal of any relevant international agreements that would be breached as a result of the visa cancellation.
130.The Tribunal gives no weight to this consideration in favour of not cancelling the visa.
Any other relevant matters
131.Policy suggests that matters generally when considering whether a visa should be cancelled should be weighted in favour of the visa holder[10]. The list of matters for consideration is not mandated nor finite. The process involves weighting the different matters considered overall, on a cumulative basis, and assessing how best to exercise the discretion to arrive at the preferable decision.
[10] PAM 3 states: Generally, matters must be weighed in favour of the visa holder, not against the visa holder

For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision. Those provisions are not applicable to the circumstances of the current review application which is considering whether the visa should be cancelled under s 116(1)(g) of the Act and the appropriate exercise of discretion by the decision-maker.

133.The Tribunal has made reference as required to reg 2.43B which for the reasons given, does not apply in this instance where no certifying entity has issued a written certificate in relation to the visa holder in respect of a workplace exploitation matter that set outs the matters agreed to by Immigration and a relevant government entity.
134.The Tribunal has made reference above to what it considers in the circumstances was a ‘relevant matter’. The Tribunal finds that there was an inadequate response from the employer to what might have reasonably been expected towards the applicant both in respect of his health issue and the consequences if he were unable to return to his work at the abattoir.
135.The minimal response from RWM does not reflect the applicant’s ignorance as to Australian workplace law, a matter which rendered him vulnerable. The employer ought to have considered and taken into account how the applicant may have been assisted in light of his different cultural and workplace background in Fiji, and the effect on him of his right to remain in Australia under a temporary work visa. He required assistance to fully understand his position which was not forthcoming.
Summary
136.The Tribunal has attempted to give appropriate weight to all matters submitted and considered.
137.Accepting, as Policy provides, that generally, matters considered should be weighted in favour of the visa holder, the Tribunal concludes that the preferable decision is that the visa in this instance should not be cancelled.

DECISION

138.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 403 (Temporary Work (International Relations)) visa.

Date(s) of hearing: 10 January 2025
Representative for the Applicant: Mr Mohammad Shahadat Hossain (MARN: 1799395)

ATTACHMENT – Extract from regs 2.43A and 2.43B of the Migration Regulations 1994 (Cth)

2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition

(1) This regulation applies in relation to a visa if:
(a)the visa is a temporary visa other than:
(i)a criminal justice visa; or
(ii)an enforcement visa; and

(b)the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and
(c)regulation 2.43B does not apply in relation to the visa.

(2)For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
(a)any written certificate issued by a certifying entity that is a government entity if the certificate:
(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii)sets out the matters agreed to by Immigration and the government entity;

(b)any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and
(iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;

(c)whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d)whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
(e)whether the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject;

(f)whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.

(3)Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)paragraph 116(1)(b) of the Act for non-compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or
(b)a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.

2.43B Circumstances in which the Minister is not to cancel certain temporary visa for breach of restricted work condition

(1) This regulation applies in relation to a visa if:
(a)the visa is a temporary visa other than:
(i)a bridging visa; or
(ii)a criminal justice visa; or
(iii)an enforcement visa; and

(b)the visa is subject to a condition (the restricted work condition) restricting the work that the visa holder may do in Australia (other than a condition that prohibits the visa holder from engaging in any work in Australia); and
(c)the Minister is satisfied that the visa holder has not complied with the restricted work condition.

Certificate issued by a certifying entity that is a government entity

(2)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is a government entity has issued a written certificate in relation to the visa holder in respect of a workplace exploitation matter that set outs the matters agreed to by Immigration and the government entity;
(b)the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the certificate relates;
(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which the certificate relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

Certificate issued by a certifying entity that is not a government entity

(3)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:
(i)there is prima facie evidence that the visa holder is currently, or has been within the 12 month period preceding the issue of the certificate, the subject of a workplace exploitation matter; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(b)the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;
(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)the visa holder has committed, in writing, to do both of the following:
(i)to take action to resolve the workplace exploitation matter in a timely manner;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

(4)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:
(i)there is prima facie evidence that the visa holder has been the subject of a workplace exploitation matter at a time that is more than 12 months before the issue of the certificate; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(b)the Minister is satisfied that:
(i)the workplace exploitation matter to which the visa holder has been subject is serious or systemic in nature; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)the visa holder has committed, in writing, to do both of the following:
(i)to take action to resolve the workplace exploitation matter in a timely manner;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

Failure to comply with written commitment

(5)Subregulation (2), (3) and (4) do not apply in relation to the visa if the Minister is satisfied that the visa holder has failed to comply with a written commitment of a kind mentioned in paragraph (2)(d), (3)(d) or (4)(d), or paragraph 2.43A(2)(e), that the visa holder has previously given in relation to the visa.

Other powers or duties to cancel

(6)Subregulation (2), (3) and (4) do not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)paragraph 116(1)(b) of the Act for non-compliance with a condition (other than the restricted work condition) to which the visa holder’s visa is subject; or
(b)a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.

(a) the visa holder’s visa was granted; or …[n/a]